IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)

Present

Mr. Justice Md. Salim

And

Mr. Justice Md. Riaz Uddin Khan

CRIMINAL MISCELLANEOUS CASE NO.19517 OF 2014

Shakil Ahmed Tanvir @ Shakil

............Accused-Petitioner. -VERSUS-

The State                    . ...Opposite Party.

No one appears

............ For both the parties.

Mr. B.M. Abdur Rafell, D.A.G. with Mr. Binoy Kumar Ghosh, AAG

Mr. A.T.M. Aminur Rahman (Milon), AAG Ms. Lily Rani Saha, AAG ..............For the State.

Heard and Judgment on: 23.11.2023

 Shahed Nuruddin, J:

By this Rule, the accused-petitioner by filing an application

under Section 561A of the Code of Criminal Procedure sought for quashing of the proceedings of Metropolitan Sessions Case No.811 of 2011 arising out of C.R. Case No.51 of 2009 under Section 138 of the Negotiable  Instrument  Act,1881,  now  pending  before  the  learned Additional Metropolitan Sessions Judge, 5th Court, Chattogram.

Material  facts  leading  to  this  Rule  are  that,  in  order  to discharge the loan liability the accused petitioner gave the cheque to the complainant which on presentation to the bank for encashment was dishonored on the ground of insufficiency of funds. Following the procedure and in compliance with statutory provisions laid down in section 138 of the Negotiable Instruments Act,1881 the complainant filed the instant case.

The  learned  Magistrate took cognizance of the offense and subsequently, the charge was framed by the Additional Metropolitan Sessions Judge, 5th Court, Chattogram. The case is now pending for trial.

Feeling aggrieved the accused petitioner preferred the instant application and obtained the present Rule on 05.05.2014.

Despite the matter appears in the cause list for hearing, no one appears on behalf of the petitioner to press the rule.

Heard the learned Deputy Attorney General and perused the

record.

On  exploration  of  the  materials  on  record,  it transpires  that  the  complainant  categorically  narrated the  manner  of  crime  committed  by  the  accused.  The learned Judge after considering the entire materials on record rightly framed the charge under the same section against the accused petitioner. Moreso, in defence the accused denied the entire allegations. So, when there is such denial, the question of innocence does not arise in this regard reliance has been placed on the case of Abdur Rahim alias A.N.M Abdur Rahman Vs. Enamul Haq and another reported in 43 DLR (AD) 173. Moreover, we can also rely upon the cases reported in 68 DLR (AD) 298, 72 DLR  (AD)  79,  and  the  case  of  Phoenix  Finance  and Investment  Limited  (PFIL)  Vs.  Yeasmin  Ahmed  and another reported in XVIII ADC (AD) 490. In the instant case,  the  accused  stand  indicted  for  an  offense punishable under the same section. Cognizance has been taken as well the charge has been framed against the accused  petitioner  under  the  same  section.  We  have meticulously  examined  the  allegations  made  by  the complainant  and  we  find  that  the  offence  punishable under the above offence has been clearly disclosed in the instant case against the accused. We have gone through the grounds taken in the petition of Miscellaneous Case and  we  find  that  such  grounds  are  absolutely  the disputed  question  of  facts  and  the  same  should  be

It is also notable whether the respondent of the company at the relevant time was a director or not and whether a person was in charge and was responsible for the  conduct  of  the  business  of  the  company  at  the relevant point of time is a disputed question of fact. So the burden of proof lies upon the accused person as per provision so enumerated in section 102 of the Evidence Act, 1872.

Therefore we hold that there are sufficient grounds for proceeding against the accused petitioner for going to trial under the same section. To that end, view, we are at one with the learned Judge of the Court below regarding the framing of the charge against the accused.

 In the light of the discussions made above and the preponderant  judicial  views  emerging  out  of  the authorities referred to above we are of the view that the impugned  proceedings  suffer  from  no  legal  infirmities

which calls for no interference by this Court.

In  view  of  the  foregoing  narrative,  the  Rule  is discharged.  The  order  of  stay  granted  earlier  stands vacated.

The office is directed to communicate the judgment

at once. Md. Salim, J:

I agree

Hanif/BO